New Rules for Life Under the Trump Administration

by W. John Yahya Vandenberg

So, as you know, President Trump is rapidly issuing Executive Orders. Some of these orders are having major impacts on immigrants and other persons who are not (yet) U.S. citizens.

In light of these developments, we have the following recommendations for persons who are not U.S. citizens:

1. If you are undocumented, then you should be sure that at least two trusted individuals know your name, date of birth, country of origin, “A number” (if you have one), and have the contact information for our office.

2. If you are a U.S. Lawful Permanent Resident (greencard holder), student, visitor, or in other lawful status, carry a copy of your green card, I-94 card, or other proof of legal status with you.

3. If you are here on a student, visitor, exchange, or temporary worker status, CONSULT WITH ME before traveling out of the U.S.  I am NOT telling you to violate or overstay your status.  I’m saying that your legal status today may not be the same as it was on January 25, 2017.  There have, as I’m sure you know, been some changes.

4. If you are from Iraq, Iran, Libya, Syria, Yemen, Sudan, or Somalia, it is highly likely you will not be able to return if you leave the U.S. It doesn’t matter if you have a greencard or a refugee travel documents – do not leave the United States.  If you need to go, CONSULT WITH ME.  Otherwise, no one can say with certainly when — or if — you will be allowed back in.

5. If you have DACA, CONSULT WITH ME before traveling on an Advance Parole. There is a chance that in the next week or so there will be no more Advance Parole for DACA’s.  And you could get stuck outside the US without a chance to come back.

6. If you have a pending I-589 asylum application, I-360 application (VAWA/victim of abuse or Widow/Widower petition, or Religious Worker) or I-485 adjustment of status application, carry a copy of the receipt with you AND give a copy to a trusted person.  And do NOT leave the United States if you are from one of the seven countries.

7. If you have a valid social security card, driver’s license, and/or work permit, carry that with you and give a copy to a trusted person.

8. If you are not currently in status (meaning that you do not have a valid non-immigrant or immigrant visa) for any reason, and have been in the U.S. for more than two years, GET PROOF TOGETHER NOW PROVING YOUR PRESENCE. Proof could be bank statements, phone bills, rent receipts, your signature on your children’s report cards, or other documents. Carry a copy of these documents with you (or keep them in your car), and give a copy a trusted person. Do NOT carry with you any document that says where you were born. This is because it is possible that the new Trump Executive Order could mean that undocumented persons who have been in the U.S. for less than two years could be subjected to “Expedited Removal” without the right to see an Immigration Judge and fight your deportation in Immigration Court.  If they can’t prove where you were born, then we may be able to get the deportation thrown out of court.

9. If you are afraid of being persecuted in your home country and have not yet filed for asylum, CONSULT WITH ME as soon as possible to analyze your asylum case.

10. If you have children: first, THEY HAVE THE RIGHT TO GO TO SCHOOL.  Do not pull your children from school because they don’t have any status in the United States.  The Supreme Court states they have the right to their education, no matter their status.  And generally, ICE stays away as a policy matter from churches and schools.

Second, your children  should always have the name and contact information of a trusted person, and the trusted person should have your information. To be clear, I do NOT believe that ICE will go to schools. But if you get picked up by ICE while the kids are at school, they are going to need a safe place to go after school.  They may need to call your friend to get there.

11. If you do not have a license, consider carefully whether you really need to drive or not. Right now, Philadelphia seems safe. The counties – Montgomery, Bucks, Delaware… I am not so sure. Trump’s Executive Order appears to give police officers to ask about immigration status. You could be taken in and turned over to ICE.

12. If you are in a car which is stopped, only the driver has to present a license. Any passenger should only give his/her name and not answer any other questions. Ask if you are free to leave; if so, leave calmly.

13. If you are stopped by police on the street, you have to give them your name and where you live. Ask if you are free to leave. If not, consider yourself under arrest.

14. If you are arrested, repeat clearly that you want to remain silent and you want a lawyer. Do not answer ANY questions other than your name and your address. Call me, or someone you trust, and tell them to call me.

15. If someone comes to your door saying “Police, open up” DO NOT OPEN THE DOOR. Ask the officials if they have a WARRANT, to pass it under the door. Take a photo of the warrant and send it to me or other trusted person. If the warrant is not signed by a JUDGE or MAGISTRATE and does not have your name and address on it, you do not have to open the door. Don’t answer any questions.

These are difficult times we are entering.  If it makes you feel any better, it’s not the first time a government has scapegoated immigrants.  We’re here for you, and will fight for your rights.

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DACA – It’s time to have a talk about Life Under the Trump Administration.

by W. John Yahya Vandenberg

With the election of Donald J. Trump, it is a good time to find out if you or your family member is eligible for something better than Deferred Action for Childhood Arrivals (“DACA”).  There are three reasons we should talk.

First, it’s a good idea to find out if you qualify for something new.  For some if you it has been years since we had our initial consultation; perhaps something about you or your trumprelationships has changed.  Also, no one knows exactly what President Trump will do about undocumented immigrants after he is sworn in as President on January 20, 2017.

However, he has told us what changes he wants to make.  President-elect Trump has said he will end Obama’s “Executive Actions” — and DACA is an Executive Action.  But no one knows when, or even if, he’ll do it.  So we are still filing DACA renewals as early as we can.  There doesn’t seem to be much downside.  If your DACA is ending in 6-9 months, TELL ME.  We should give it a shot. If you didn’t file already, we should discuss and see if it is the right choice for you.

Second, it seems inevitable that President Trump will make life harder on the immigrant community once he becomes President.  It would cost billions of dollars to deport all undocumented immigrants, so many don’t foresee mass deportations as a viable option.  But there is a sense that his administration might just try to make it so hard to live life normally that some would decide to leave on their own.  So, for instance, his

Secretary of State Kris Kobach voter fraud
Kris Kobach, Trump Transition Team Member, Potential U.S. Attorney General

Administration, in the words of transition team member Kris Kobach, could crack down on employers of undocumented immigrants, or he could make unlawful employment a serious offense.  Can’t legally work, can’t drive – this would be enough pressure to convince some undocumented immigrants to leave on their own.  Ending DACA, or just letting the program die out by not allowing renewals after he is President, might also accomplish this. So we try should try to find an alternative before he officially becomes President.

 

Third, now is the time to plan, not panic.  DACA’s are already doing so many things right – you don’t have a criminal record, you graduated from high school (or are studying to do so) or college, and you’ve probably got at least one job keeping you busy.  photo-of-dreamers-graduating

If Trump is smart, he’ll figure out a way to keep you here, legally. He has already stated that his first priorities are deporting criminal undocumented immigrants and building a wall.  THEN, Trump has stated, he will decide what to do about the “terrific people” who are in the U.S. without status (he actually said you DREAMERs and DACAs are terrific!).  A number of commentators feel like real Comprehensive Immigration Reform is on the horizon, though it’s probably going to make things tougher for most, rather than easier.  In order to be harsh on some groups (most likely persons with a criminal record), Congress could try to soften and sell it by helping some immigrant groups.  DACA’s and DREAMER’s are probably a group who could finally win big.

Problem is: when?  And what if he doesn’t?  We don’t know when anything will happen.  But we know that if President Trump leaves the system we have in place for the time being, many of you could be able to maintain your current status, or get something better.

So I want to hear from YOU.  To get the conversation started, here are 27 questions:

  1. Have you gotten married?  Even if your spouse has DACA, or even if they don’t have legal status, perhaps they have a way to stay in the United States that would also give you status.
  2. Are you now married to a U.S. Citizen or U.S. Lawful Permanent Resident (“green card holder”)?
  3. Does a parent, spouse, or child expect to become a US citizen or get a green card soon?
  4.  Do you have a U.S. citizen child?
  5. Do you have a spouse, parent, or child who has severe mental, medical, or emotional disability?
  6. Have you or a family member (parent, spouse, child) been a victim of crime in the United States, and cooperated with the police in any way?
  7. Have you ever in the United States had to call the police for help?
  8. Have you ever been forced to work exceptionally long hours without a break and/or 7 days a week without a break and you were not free to stop, quit, or leave?
  9. Have you ever been forced, coerced, or tricked into having sex or doing sex industry work like stripping or working as an escort?
  10. Did any relative or employer ever file a petition for you, your mother, or your father before April 30, 2001?
  11. Do you have spouse, parent, or child who is in the U.S. Military (including the Reserves), or who is an honorably-discharged veteran of the U.S. Military?
  12. Do you have a spouse, parent, or child who intends to enlist in the U.S. Military, or would do so in order to help you legalize your status?
  13. Has anyone in your family (like a parent, spouse/partner, or child) ever hit, pushed, choked, or otherwise physically or mentally harmed, threatened, insulted, controlled, or otherwise abused you, your parent, or your child?
  14. Before you came to the US, were you, your family, or members of a group you belong to (including LGBTQ) targeted by a government, people, or gangs trying to hurt, scare or recruit you?
  15. Are you afraid to return to your native country because the government, people, or gangs might target you because of your race, religion, national origin, political opinion, or because you belong to a certain group, including your family, clan, or because you are LGBTQ?
  16. If you are under 21, do you live away from your parent or parents, or would you choose to, because they have abused, abandoned, neglected, or similarly mistreated you?
  17. Do you have an employer who is willing to sponsor you for a work visa or a green card?
  18. When you came to the United States, did you come using a visa?
  19. When you came to the United States, did you come using fake papers, or the papers of a family member?
  20. When you came to the United States, were you “waived in” without having to show any papers?
  21. If you came to the U.S. and were not admitted by Customs, and were never caught by Immigration, do you have a reason to return to your country using Humanitarian Parole to visit sick/elderly relatives or participate in an educational or business opportunity?
  22. Were you or your parents born in El Salvador or Guatemala, and did you or your parents enter the US before September 19990?
  23. Was your spouse born in El Salvador or Guatemala and entered the US before September 1990?
  24. Were either of your parents US citizens when you were born?
  25. Were any of your grandparents US citizens when your parents were born?
  26. Have you been here at least 10 years, and were not caught at the border coming in?
  27. Do you have a field of research or a skill in which you are one of the best?

 

If you answer “Yes” or “Maybe,” then we should talk, because you may have an opportunity to obtain lawful status.  If you are already a client of Hogan & Vandenberg, call my office, there is no additional fee to figure out if we can make your situation better.  If you are not already a client, contact the office and schedule a consultation.

Even if none of the above apply to you, be sure to “like” our firm on Facebook ( https://www.facebook.com/hvlawgroup/  ) so you can get regular updates about immigration law. And if you have a friend or family member who needs our assistance, please have them contact us.

The Day After Trump, For Immigrants

by W. John Yahya Vandenberg

November 9, 2016

Trump’s election is likely going to change a lot of things, especially for immigrants, and most certainly for undocumented immigrants. So let’s walk through what happens now and the following days.

First, not much will change until Trump actually is sworn in in January. So there is some time to figure out who should be concerned, and why.

Second, there are some immigrants who have less time than others to take steps to work on their status. I’m especially thinking about DACA recipients. DACA’s – you guys rock. You are working, you are studying, you are making your communities better places. If you are near or close to 180 days til expiration, NOW is the time to file to extend your DACA. If there is more than 6 months, I think it would be worthwhile to file to extend no later than the end of December. This is about getting as much time as possible.

For persons eligible for DACA who didn’t yet make an initial application, you have a choice to make.  If you apply now for the first time, you are giving Immigration and Customs Enforcement (“ICE”) your address and contact information.  If they want to detain you, they could.  At the same time, if you are granted DACA – well, a Social Security Card is a very handy thing to have, even if it’s only for two years.  So any new DACA’s should carefully consider the potential risks and benefits.

Third, there are some immigrants who don’t have much to worry about. If you have status article-2147783-133851e5000005dc-611_468x302in the United States – I’m thinking immigrants with work visas, or greencards, or you are petitioning for a relative who is overseas – you should be OK.

Finally, there are some immigrants who have a reason to worry. I’m thinking about immigrants who are undocumented. There is a good chance that after Inauguration Day on January 20, 2017, we’ll go back to the days when ICE could arrest anyone who is undocumented, detain them if they want to, and seek to deport them. It is also quite likely that those persons whose cases are Administratively Closed will see their cases reopened.

To those immigrants without status, our lawyers have been here before, and we know what to do: fight for you in the courts. After the terrorist attacks of 9/11, we saw this: immigrants targeted for detention and removal proceedings. Those who fought often won. Those who gave up, lost, and were either deported or left.

To those immigrants without status, we want you to know that America has been here before. Tonight I am reminded of my law school, the Villanova University School of Law. It is located in Villanova, Pennsylvania, which is a suburb of Philadelphia.

Not many people know that Villanova University is in Villanova because in 1844, “Nativists,” persons who hated immigrants, burned down the St. Augustine Church in South Philadelphia. The Nativists did so because of a rumor that Catholics – then mainly Irish and Italian immigrants – were going to take the Bible out of Philadelphia public schools. The Augustinian Fathers literally were burned out of Philadelphia.

 

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Lithograph of the old St. Augustine Church burning in 1844.

But you should also know that times change for the better. The Augustinian fathers founded Villanova University from that terrible incident, and the University served, and still serves, the children and grandchildren and great-grandchildren of those Irish & Italian Catholics who lost their church. The Augustinian fathers sued the city of Philadelphia, and they won compensation for the loss of their church. And they rebuilt St. Augustine’s, which still stands today at 243 N. Lawrence Street in Philadelphia.st-augustines-church

The children of those Italian and Irish immigrants got jobs that counted. They served as police, as members of the military, and members of the media. They organized themselves politically and they learned how to make their votes count. Now is the time to work, not to falter or become disheartened.

The sun will rise at 6:40am this morning. I’ll be in the office all day. If you’re worried, know that we’re here for you, and we’ll fight for your rights.  We might even sue.

HIV+? Wait here, please….

by W. John Vandenberg

We all know that HIV is no longer a ground of inadmissibility, meaning it can’t block you from getting a visa to the United States. But this year, in March of 2014, the CDC decided that persons with HIV must get a special TB test. And this particular test takes 6-8 weeks for results! The first step is to have a “sputum test” administered on 3 consecutive business days to get the process started. CDC.  Then they are going to wait 60 days to see if the cultures are positive.

We understand the reason for testing — TB is a serious disease.  And we understand that persons who are HIV+ may show a false negative.  But aren’t the x-rays determinative of an active TB infection?  And there is no reason that an HIV+ person can’t take the same TB test as everyone else.

So, for those who are expecting a loved one to process overseas who is HIV+, don’t worry — they’ll get home.  But just make sure you don’t purchase any tickets or flowers for the airport until they actually get here — two months later than just about everyone else…

Stateside Waivers: A Year of Improvements

By Katelyn M. Hufe, Esq.

Last year’s AILA Conference in San Francisco came just 3 months after USCIS launched the provisional waiver program.  Now, USCIS has had over a year to work out kinks in the program.  The result: a 62% application approval rate, increasing clarity in standards and procedures, and the reopening, review and approval of several wrongfully denied applications.

For those of you who may not be familiar with the program, the March 2013 provisional waiver program aims at reducing hardship on families who are separated from their loved one during the waiver process.  Thousands of people unlawfully present in the U.S. require a waiver in order to get their green card through their spouse, child, or parent.

Before, those people had to return to their home country for many months in order to complete the process.  With the new (or year old!) program, people can apply and wait for a decision while here in the United States, and, if approved, return to their home country for a very brief period to obtain their immigrant visa.  Financially and emotionally, this program has been a life raft for families hanging on in a sea of harsh and unstable immigration processing.

Fast forward to June 20, 2014 at the AILA Annual Conference in Boston, and where are we? Well, 62% of applications are being approved, and USCIS has been requesting additional evidence in 31% of cases.  The government has a backlog of 12,695 cases.  USCIS has an impossible goal of completing cases in 90 days (which earned a crowd chuckle), but, more realistically, does try to make decisions within 6 months (although, as many of us know from experience, this often drags out to 8 months to a year).

Finally, we had 2 important takeaways from the conference panel:

1) While USCIS was routinely and inappropriately denying applications where an applicant had minor criminal issues (including, as I learned, traffic tickets!), this problem seems to have been remedied.  USCIS has provided new training and guidance to employees and even reopened many of these denied applications to grant waivers in those cases, and;

2) Through the hard work of AILA, we now have access to USCIS power points, procedures, and checklists that tell us EXACTLY what USCIS is looking for in these application packets.  This information tells us precisely what information and documentation we need from our clients and helps us to do everything we can to get applications approved.

In short, it’s been a good year for the provisional waiver program.  Things are running more smoothly, and AILA lawyers are more equipped than ever to file winning applications.  Let’s hope for a year of even more improvements by the time the AILA 2015 Annual Conference in National Harbor, MD rolls around!

And, as always, feel free to reach out to us with any questions or to learn more about the waiver program.

 

Adjustment of Status through Advance Parole: An Alternative to Provisional Waivers

By W. John Yahya Vandenberg, Esq.

Hogan & Vandenberg LLC

This is the third of three articles on obtaining U.S. Lawful Permanent Residence (“the greencard”) for persons who entered the United States without inspection, also known as “EWI.”  The first article explored Provisional Waivers.  The second article explored what “Extreme Hardship” means in relation to the “waiver” in Provisional Waiver.  This article is about a third option: seeking Adjustment of Status and using Advance Parole to visit family members in the home country and at the same time to cure entry without inspection.  Once the immigrant has entered using Advance Parole, they would be eligible to adjust their status without requiring a waiver.

Curing unlawful entry by entering with Advance Parole is not a new concept or practice.  Many lawyers who have dealt with immigrants on Temporary Protected Status (“TPS”) already have experience.

Allow me to introduce, for the purpose of example, Juan and Lisa.  Juan is an immigrant from El Salvador.  He entered the United States in 1998, walking across the border from Mexico into Texas.  He, like many others, was never caught by the Border Patrol.  When the United States designated El Salvador for TPS on March 9, 2001, Juan applied for and was granted TPS.  He remained in the United States ever since.

Juan met Lisa, a U.S. citizen.  They fell in love, and married.  They had two children together, ages 3 and 7, both U.S. citizens.  Juan wanted to become a U.S. Lawful Permanent Resident through his wife, Lisa.

Historically, their choices were stark.  They were:

a)      Wait it out, and see if the law changed.  This meant some type of amnesty or       immigration reform.  And it has not happened yet.

b)     Lisa could have petitioned for Juan as her spouse, and once approved he would travel to El Salvador, have a visa appointment at the Embassy, and wait 6-9 months for an answer to his unlawful presence waiver application;

c)      Lisa could have petitioned for Juan as her spouse, seeking to Adjust his Status in the United States.  Adjustment of Status essentially means that a person gets their greencard in the United States, usually after an interview at the local U.S. Citizenship & Immigration Service (“USCIS“) office.  However, the law for Adjustment of Status requires that an applicant be “admitted” or “paroled” into the United States.  So Juan had a problem: he entered the United States without inspection – walking across the border – so he was never “admitted” or “paroled.”

For Choice “C”, there was an answer, but it had a drawback.  Immigration attorneys reasoned that if a person has TPS, then they were considered to be maintaining lawful status.  As early as 1991, the then-INS Acting General Counsel Paul W. Virtue, opined that a person with TPS would be eligible for Adjustment of Status, so long as they utilized Advance Parole to leave and re-enter the United States and they were an “Immediate Relative.”  Whenever a person applies for Adjustment of Status, they can also apply for an Employment Authorization Document (a work card) and Advance Parole.  The Advance Parole allows a person to leave the United States and resume their Adjustment of Status process.  Sort of like keeping one’s place in line.  So the good news was that Juan would be eligible for Adjustment of Status once Lisa petitioned for him, so long as he left and returned to the United States using his Advance Parole.

But here was the drawback at that time.  Once Juan went on his brief, casual, and innocent trip abroad to visit family and returned using Advance Parole, that departure triggered “Unlawful Presence,” since Juan was here more than a year without permission.  Unlawful presence is a part of the Immigration Law known as the Immigration and Nationality Act that punishes immigrants who remain in the United States without permission, such as overstaying a visa or entering without permission. If the immigrant is here for more than 6 months but less than a year, and they depart, they are barred from returning for 3 years.  If they are here a year or more without permission, and they depart, they are barred from returning for 10 years.

Notice that I said “and they depart.”  This is because unlawful presence only hurts the immigrant when and if they “depart.”  Until the plane’s landing gear comes up, or the bus tires roll across the borderline, there is no bar to coming back to the USA due to unlawful presence (because the immigrant never left).  Apparently, Congress had the misguided notion that if they penalized unlawful presence, immigrants would “self deport” to avoid it.  Instead, because of the draconian consequences of departing after unlawful presence, history has shown it forced immigrants to fight like heck to avoid leaving.  But that’s a topic for a future article.

Now, in our example, if Juan and Lisa wanted to try to Adjust his status, they were going to trade one problem for another – Juan would fix his unlawful entry using the Advance Parole.  But once he departed, he triggered the Unlawful Presence bar.  Therefore, he could not get the greencard unless he was able to show that it would cause Lisa “extreme hardship” if he was forced to stay in El Salvador for 10 years, and/or if Lisa was forced to join him in El Salvador.  Still, this solution at least allowed Juan and Lisa to remain together while USCIS made a decision on the waiver.  Though if the waiver was not granted, it could take years to win an appeal.  For an example of one appeal we won involving exactly this situation, the decision is here.  We waited almost two years for this decision!

Things were indeed difficult for the Juan’s and Lisa’s who were trying to do everything right.

Then, in April 2012, something wonderful happened.  The U.S. Board of Immigration Appeals (the “BIA”) issued a precedential decision, Matter of Arrabally and YerrabellyThere, the BIA set out, to the contrary of how everyone understood Advance Parole and Unlawful Presence, that leaving the USA on Advance Parole was not really a “departure” for the purposes of the Unlawful Presence bar, and therefore Unlawful Presence was not triggered.  This shook the earth, from an immigration law perspective.

So you remember Juan and Lisa’s problem?  And how we had to show extreme hardship to Lisa when he triggered the Unlawful Presence bar?  Well, in Matter of Arrabally, the BIA said, essentially, that it doesn’t make sense for a brief, casual, and innocent visit using Advance Parole to trigger the Unlawful Presence Bar since the USCIS gave it to the immigrant in the first place, knowing full well that they would like to travel for a legitimate purpose.

Therefore, after April 2012, Juan could re-enter using Advance Parole, which would cure his unlawful entry, and seek to adjust status without a waiver.  He would adjust his status just like anyone else who was lawfully admitted.  We know this is the case, because in August 2012, the USCIS Administrative Appeals Office (“AAO“) issued a decision based on Matter of Arrabally.  In the decision, the AAO considered the case of a man from El Salvador, who had departed the United States using Advance Parole, and when he re-entered tried to Adjust Status.  Unfortunately for him, the USCIS District Office didn’t find extreme hardship, so they denied the waiver and denied his Adjustment of Status.  He appealed.  And then, the AAO granted his Adjustment of Status.  They did so because after Arrabally the waiver was no longer necessary.  This is supportive of our position that Adjustment of Status using Advance Parole is a proper means of obtaining Lawful Permanent Residence.

What does using Advance Parole and Adjustment of Status mean to immigrants and their families, and why should they consider this process?  First, it’s faster than Provisional Waivers, which can still take a year or more.  The Provisional Waiver program is a three step process: a) File I-130 Immigrant Petition, b) upon approval, file I-601A Provisional Waiver, c) upon approval, complete consular processing in the immigrant’s home country.  That process can take a year or more (though at least the immigrant is in the United States with their family for most of it!).  Adjustment of Status/Advance Parole is generally taking about four months.

Second, it’s more likely to be successful.  Remember, in order to qualify for the Provisional Waiver, there has to be extreme hardship.  In some cases, there just may not be “extreme hardship.”  For example, if the immigrant is married to someone from his/her own home country, who speaks the language fluently, is financially independent, has no children or elderly relatives, and has a job that is lucrative in the United States and the foreign country.  No extreme hardship, no provisional waiver.  Yet for the Adjustment/Advance Parole process, no hardship of any kind is necessary.  Once entry is cured, since there is no longer a trigger for Unlawful Presence, the immigrant adjusts their status as any other immigrant who entered lawfully.

Third, it’s less expensive.  The I-601A Provisional Waiver form requires payment of a $585 USCIS filing fee.  And that’s not counting the attorneys’ fees to prepare a strong argument for granting the waiver.  But if we use Advance Parole and seek Adjustment of Status, once the immigrant has been paroled into the United States, their entry is cured.  No waiver necessary.  And the fee for the Advance Parole is already part of the filing fee for the I-485.

The next question we usually get is what are the guarantees that the immigrant will be admitted back to the USA using the Advance Parole.  This has been answered as far back as 1997.  There, the INS General Counsel stated that parole is not admission, therefore it doesn’t matter if the person would be subject to a bar of removal, they can still be paroled in.  And even if Customs & Border Patrol (“CBP”) made a finding that the Advance Parole is revoked or doesn’t want to parole them in for some reason, Section 16.1 of the CBP Inspector’s Field Manual makes it clear that they must allow them to remain in the United States and allow them to make their case to the Immigration Judge.  So, barring a serious criminal record or a previous deportation/removal order, the immigrant should be allowed into the United States on the Advance Parole.

Finally, what happens if it is not successful?  At this time, all of our clients in this situation have successfully adjusted status.  And we feel that this is consistent both with the purpose of the Advance Parole and the Virtue Legal Opinion above.

However, since March 2013, USCIS has been denying the initial I-485, since at the time of filing the immigrant had not yet been admitted on Advance Parole.  However, if a subsequent I-485 is filed afterwards, these have been approved.

Even if the adjustment were not successful, it is unlikely that the immigrant would be put into removal proceedings due to Prosecutorial Discretion.  As the Prosecutorial Discretion Memorandum sets out, ICE is seeking to remove criminals, terrorists, and persons who have been ordered removed and either never left or returned illegally.  And since removal proceedings are unlikely, the immigrant could still seek a Provisional Waiver. Or, alternatively, wait and see if the law changes.

Of course, we have to emphasize that every person’s case is different.  None of our blog articles are legal advice – for legal advice you must consult with us, or an attorney who is experienced and knowledgeable in immigration law.  Immigrants who have a previous removal order or have a criminal record would likely not be good candidates for Advance Parole adjustment.  In addition, USCIS revises its guidance constantly, and updates its understanding of the laws and regulations; Adjustment of Status using Advance Parole to cure entry may not be accepted in the future.  If you are considering adjusting status, please contact our office and set up a consultation so that we can learn more about you and advise you properly.  We look forward to speaking with you!

UPDATE, March 5, 2015: USCIS has made it much, much harder to obtain Advance Parole, and this has been the case since approximately August 2014.  Persons who have DACA or TPS are still able to obtain it, so long as they can show they have a legitimate humanitarian ground for traveling.  And make no mistake — USCIS is requesting documentation to prove it.  It has become more rare, however, to obtain advance parole if the applicant does not have DACA or TPS.  While we may disagree with USCIS’ reasoning on not granting Advance Parole, it is a factor that must be addressed in considering whether to apply for Adjustment of Status or not.

Provisional Waivers — What is “Extreme Hardship?”

W. John Yahya Vandenberg, Esq.

In our previous post we dealt with Provisional Waivers.  So our readers should have a pretty good idea of who may qualify to file one; if you don’t, our article and the fact sheet from the U.S. Citizenship & Immigration Service (“USCIS”) can be found here.

But the next issue with Provisional Waivers, if you meet the criteria to file one, is that the immigrant has to show “extreme hardship.”  Now, what is “extreme hardship?”  That’s a legal matter, and if you haven’t made up your mind to get a good, experienced immigration attorney to help you, I hope this article will encourage you to do so.

Here’s why: “extreme hardship” in the case of Provisional Waivers will only accept “extreme hardship” to the U.S. citizen or Lawful Permanent Resident (a greencard holder, also called an “LPR”) spouse or parent of the immigrant.  That means that if the immigrant needing a Provisional Waiver is the single mother of 10 U.S. citizen children, and her parents have died, she is not going to be able to get a Provisional Waiver no matter how sorry the USCIS officer feels for her.  Hardship to the immigrant his or herself doesn’t count; USCIS generally just doesn’t care, at least for the purposes of a waiver.  And hardship to U.S. citizen or LPR children doesn’t count directly, either.  Bottom line: no U.S. citizen or LPR spouse or parent, no Provisional Waiver.

Now, if the immigrant does have a qualifying relative – a U.S. Citizen or LPR spouse or parent, they get to the next step: a chance to demonstrate that if they leave the qualifying relative in the USA alone, or the qualifying relative relocates to the foreign country, the qualifying relative will experience “extreme hardship.”

What is extreme hardship?  That’s a nebulous term that is more often determined by what it’s not.  The USCIS is quick to point out that extreme hardship is not “the normal hardship” that one would expect a spouse or parent to experience if the immigrant doesn’t get the waiver.  “Normal hardship” is generally viewed by USCIS as economic disadvantage, inability to maintain one’s present standard of living, separation from family members, or cultural readjustment.  These “normal hardships” alone won’t generally constitute “extreme hardship.”

Helpfully, we do have some guidance on the factors that can show “extreme hardship.”  The classic analysis for “extreme hardship” is set out in the precedential case Matter of Cervantes-Gonzales.  There, the Board of Immigration Appeals set out the standards taken into account.  They are:

1)      If the immigrant has U.S. citizen or LPR family members, and how many;

2)      The qualifying relative’s family ties outside the United States;

3)      The country conditions where the qualifying relative would have to relocate, and their ties to that country, if any;

4)      The financial impact that the qualifying relative and/or the immigrant’s departure from the United States will cause;

5)      Significant conditions of health in the qualifying relative, particularly when tied to the unavailability of suitable medical care in the foreign country.

This list is not exhaustive, but it’s where the USCIS will start when analyzing an I-601A Provisional Waiver application seeking approval based on “extreme hardship.”  Not all of the factors have to be in the immigrant’s favor to get an approval, and the list is not all-inclusive.

It is also good to keep in mind that the above factors, and others, can also demonstrate “extreme hardship” when they are taken in the aggregate.  So there is a “totality” of the factors that is taken into account.  This means even though the qualifying relative may not have any one big, serious hardship, if they can show a lot of lesser ones, they may still meet the “extreme hardship” standard.

So what do you do, Mr. Vandenberg, when someone asks us if they qualify for a Provisional Waiver?  Well, the first thing we do is run through the qualifying factors we write about above.  Does the immigrant meet the qualifications for a Provisional Waiver?  If yes, we move to the next question: does the immigrant have one or more “qualifying relatives?”  If yes, then we go through the Cervantes Gonzales factors above.  We also have our own checklist, and here’s what I’ll be particularly interested in:

1)      If the immigrant has U.S. citizen or LPR relatives in the USA, how many do they have?  Are they all, or are many of them, willing to write a letter about how much the immigrant means to them and the qualifying relative(s)?

2)      What kind of health problems – physical, mental, emotional – do the immigrants’ relatives have?  Remember also that the qualifying relative doesn’t necessarily have to have a health problem.  The problem could be of someone who is not a qualifying relative, but someone the qualifying relative must care for.  For example, an immigrant’s wife may have to care for her ailing and elderly parent.  Or their sick child, or child who has autism or a learning disability.  And I’ll need to research if that condition be adequately treated in the foreign country.  This factor can provide very strong support for a waiver if the illness is serious and supported by trustworthy evidence.

3)      What does the qualifying relative do for the community?  Is the qualifying relative a nurse?  A social worker?  Someone who volunteers their time for their mosque or church or synagogue, or a local community organization? This is viewed very positively by USCIS, and also demonstrates the loss to the community if the waiver is not granted and the qualifying relative relocates to the foreign country.  And if the immigrant themselves is an integral part of the community it can at least be considered as a matter of discretion by USCIS.

4)      What are the education and/or career disruptions to the qualifying relative?  This can also be very powerful for demonstrating “extreme hardship.”  We might be able to argue that the if qualifying relative is without the immigrant, they will neither be able to complete a degree they are working on, nor be able to complete it in the foreign country because of language, cultural, or equivalency issues.  Or perhaps their degree or experience is only useful in the United States, no they would be unable to obtain meaningful work in the foreign country.

5)      Would there be serious financial problems caused by leaving the USA to be with the immigrant, or staying here alone?  Is a mortgage going to go into default?  Is the family going to lose their car or apartment?  Will a spouse or child have to drop out of school to help the family support itself?  While merely having to change a standard of living is not usually “extreme hardship,” losing a home or significant property or assets would likely rise to extreme hardship.

6)      What are social or cultural conditions like in the home country for the qualifying relative?   Is sexual harassment in the workplace rampant and generally accepted?  Are female students given the same chance to attend school and succeed as male students?  Would the qualifying relative be able to function if they don’t speak the language?

7)      What are the political conditions?  Is it a real possibility that if the qualifying relative relocates to the foreign country they could be targeted for political violence?  Is there a difference of religion, or a danger just in being identifiably an “American?”

Once we have the answers to these questions – and usually many more that come about because of the immigrants’ answers – we’re ready to move on to the hard work: proving it.

You can’t just fill out an I-601 form, pay the fee, and send in a letter that the qualifying relatives are really going to miss the immigrant.  A good, successful waiver application is a mix of “subjective” and “objective” evidence.  The affidavits (sworn statements) of the qualifying relative(s), other family members, witnesses, and professionals serve as a type of evidence, and help the USCIS understand the documentation.  The words in an affidavit may be personal views, but even so they can be taken into account.  The key to making those affidavits truly work as persuasive evidence is to accompany them with good quality evidence.

Talk is cheap when it comes to waivers.  USCIS officers have read more than a few exaggerations or even outright lies, so they can be skeptical.  To get an approval, the immigrant is going to have to prove each and every hardship.  Does the qualifying relative have a medical problem or disability?  USCIS wants to see the medical records and a detailed letter from the physician.  Your house is going to be foreclosed without the immigrant’s income? USCIS is going to have to see the mortgage paperwork, details of all your bills and income, and exactly how much money comes in and where it goes.  Qualifying relative suffers from depression?  USCIS will generally only give real weight to proof that shows that depression has been present over a longer term, and a one-time visit to a psychologist who you paid for an “evaluation” is unlikely to be trusted.

And a word to everyone here about proof.  USCIS officers are by and large good folks.  They believe in doing the right thing.  They are good at what they do, and don’t like it when applicants treat them as if they are foolish or gullible.  The USCIS officers believe, like most everyone else, that honesty is the best policy.  ALWAYS be truthful in everything you tell or submit to immigration, and to your lawyer for that matter.  If any lawyer ever asks you to lie about something, or they tell a lie, then immediately go to someone else.  Lying does not have any part in the immigration process, including waivers.  If you can’t tell the truth, you shouldn’t be submitting anything to USCIS or any other government agency for that matter.  And if your lawyer can’t give you a good chance of success by telling the truth, that means they are a bad lawyer, or just a crook who’s only after your money. To learn more about these crooks, the damage they cause, and how to spot them, go to the AILA’s Stop Notario Fraud website.

We are well aware that waivers are difficult.  We have had success with our waivers both locally and overseas.  Here is an I-601 Waiver Grant for Unlawful Presence by the AAO that we won; it shows how an actual USCIS adjudicator examined extreme hardship in a real case.  Our client, from El Salvador, was on Temporary Protected Status.  His wife is a U.S. citizen.  In order to get his greencard, he traveled back to El Salvador and came back for his adjustment of status (greencard) interview.  This exit and re-entry using Advance Parole made him eligible for Adjustment of Status, but triggered the 10 year bar due to unlawful presence (note that today, after Matter of Arabally and Yerrabelly was issued on April 17, 2012, that one brief, casual, and innocent trip abroad wouldn’t be a problem).  USCIS Philadelphia denied his greencard, saying he didn’t show “extreme hardship.”  We disagreed, so we appealed it to the USCIS Administrative Appeals Office.  After a long wait, the Administrative Appeals Office sided with us, found extreme hardship, and sent the file back to Philadelphia.  Today, our client has his greencard because we showed extreme hardship in his case.

The Provisional Waiver program is trickier than the above client’s case.  For starters, there is no appeal if your Provisional Waiver is denied.  If you are denied, you are not eligible any more for the program.  You would at that point be stuck with the regular processing as it is now – meaning a long wait in the foreign country, if you still wished to proceed.

The bottom line: if you believe you or someone you know qualifies for the Provisional Waiver program, contact us and let’s sit down for a consultation.  We have coloring books for your children, my office is quiet, and we can see if the Provisional Waiver program works for you.  If you only speak Spanish, or Portuguese, or French, or Arabic, or Urdu, we have translators on staff.  The Provisional Waiver program is one of the most significant USCIS policy changes in a decade, and it’s important to utilize its full, humanitarian use.  However, even if you or your loved one do not qualify, a consultation is still a good idea.  There may be other options that we can explore; perhaps a waiver isn’t even necessary, or there is a better option.  Or my advice may be to just wait and see what happens next; Comprehensive Immigration Reform may be coming, and if it is, it will help even more families stay strong together.